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Pitamber Narayendas and anr. Vs. Vanmali Shamji
Court : Mumbai
Reported in : (1877)ILR2Bom1
Michael Westropp, C.J.1. Pitamber Narayendas described, in the mortgage to which we shall next refer, as a Hindu inhabitant of Bombay, by indenture of mortgage of the 25th October 1871, made in the ordinary English form, in consideration of Rs. 15,000 duly advanced to him by the Land Mortgage Bank of India, Limited, an English Joint Stock Company, having its head office in London, and a branch office in Bombay, where the mortgage transaction was arranged, mortgaged (with the usual proviso for redemption) to that Bank in fee, certain lands in the villages of Girya and Bassein in the Taluka of Bas sein and Collectorate of Thana, and a bungalow and stable in the same village of Bassein, to secure that sum, which, by that indenture, he covenanted to repay to the Bank in three instalments, viz., Rs. 2,500 on the 25th October 1872, a further sum of Rs. 2,500 on the 25th October 1873, and the balance of Rs. 10,000 on the 25th October 1874, with interest on the sum advanced, or so much thereof...
Tag this Judgment!Reg. Vs. Khanderav Bajirav and Six ors.
Court : Mumbai
Reported in : (1877)ILR1Bom10
West, J.1. The seven prisoners were committed to the Poona Court of Session for trial on the charges of voluntarily causing grievous hurt by means of a cutting instrument (Section 326 of the Indian Penal Code) and of house-breaking by night with intent to commit an offence punishable with imprisonment (Section 457). To this the Sessions Judge added the charge of dacoity under Section 395. The jury unanimously brought in a verdict of not guilty on all these charges; but the Sessions Judge, being of a different opinion, referred the case to the High Court under Section 263 of the Code of Criminal Procedure.2. The portion of Section 263, under which we have to deal with this case, runs thus: 'The High Court shall deal with the case so submitted as it would deal with an appeal, but it may acquit or convict the accused person on the facts, as well as law, without reference to the particular charges as to which the Court of Session may have disagreed with the verdict, and if it convict him, ...
Tag this Judgment!Reg. Vs. Maruti Dada and ors.
Court : Mumbai
Reported in : (1877)ILR1Bom15
West, J.1. After commenting on the evidence and expressing the opinion of the Court against the acquittal of Narayan and Sitabai and in favour of that of Maruti, proceeded thus:2. The acquittal of this prisoner (Maruti) makes it necessary to consider a point of law arising from it, and urged by Mr. Pandurang Balibhadra for the prisoners Narayan and Sitabai. He contended that the principal offender having been acquitted, his clients could not be convicted of abetment, and referred us to the case of Reg. v. Chaman Bapaji, noted under Section 108 of the Indian Penal Code in West's Edition of the Acts and Regulations. It was there held by Sir Richard Couch, late Chief Justice of this Court, and another Judge, on the 22nd of January 1864, that the principal offender being acquitted, a second prisoner could not, in the same trial, be convicted of abetment of the same offence. This ruling was in accordance with the state of the English law as it existed when an accessory could refuse to plead...
Tag this Judgment!Umiashankar Lakhmiram Vs. Chhotalal Vejeram
Court : Mumbai
Reported in : (1877)ILR1Bom19
Michael Westropp, C.J.1. The Court is of opinion that the District Judge was in error in holding the present application to fall within Article 166 of Schedule II of Act IX of 1871, from which a decree or order on appeal is expressly excepted. That exception is not limited to any particular species of appeal, and this being a Limitation Act, and, as such, restrictive of the ordinary right to take legal proceedings, it must, where its language is ambiguous, be construed strictly, i.e., in favour of the right to proceed 9 Bom. H.C. Rep. 111. This case falls rather within Article 167 of the same schedule, which allows a period of three years for the execution of a decree or order of any Civil Court not provided for by Article 169 which latter is applicable only to judgments, decrees, or orders at the Original Jurisdiction Side of Courts established by royal Charters or any order of Her Majesty in Council (see Act VI of 1874, Section 21). The third column to Article 167 shows that decrees ...
Tag this Judgment!Motilal Ramdas Vs. Narayan Undir Patil
Court : Mumbai
Reported in : (1877)ILR1Bom45
Michael Westropp, C.J.1. The Assistant Judge, in speaking of alleged payments by the defendant for which he claims credit, says: 'Where an instalment bond contained a stipulation that payment of the instalments should be indorsed upon it, and that in the event of litigation, any allegation of other modes of settlement should be discredited the Sadr Adalat rejected a written release, filed by the defendant, because it was not indorsed on the bond (S.A. No. 2 of 1855; Colebrooke's Digest Bk. I., pl. 285, 286). So here, too, I shall discredit the oral evidence of these witnesses as to payments having been made in satisfaction of this bond, and only believe the evidence of the receipt. I think it the only proper course to pursue. The lower Court found the payments proved, not on the evidence of the witnesses, but because the plaintiff did not produce his account books, but the account books were asked for, not on this point, but on the point as to whether, when the bond No. 3 was executed,...
Tag this Judgment!Suganchand Shivdas Vs. Mulchand Joharimal
Court : Mumbai
Reported in : (1877)ILR1Bom23
Michael Westropp, C.J.1. The facts of this case are very clearly stated in the judgment of the Court below by Green, J., and we agree with him in his decision on those facts. We must consider that several matters combine to make up a cause of action, and that, in such a case as the present, the dishonour of a bill or hundi by the drawee is a part of the cause of action of the holder against the indorser. It has been held that notice of dishonour is a material part of the cause of action against an indorser, and that being so it seems to us to follow as a matter of course that the dishonour itself must also be a material part of that cause of action.2. We also consider that the custom sworn to by the plaintiff's witnesses is a reasonable one, and in accordance with the law merchant. We must regard the plaintiff as holder for value of the hundi sued on. It appears that there was a large balance due to him from Popsang and on receipt of the hundi, viz., on the 3rd June, he entered the amo...
Tag this Judgment!Reg. Vs. Lakhya Govind and anr.
Court : Mumbai
Reported in : (1877)ILR1Bom50
1. We do not think the conviction of dacoity can be sustained. That was a substantive offence completed as soon as perpetrated at Velanpor, although, had Velanpor been in British territory, the subsequent acts in the process of taking away the property might, in the legal sense as they would have the same legal character, have coalesced with the first and principal one so as to give jurisdiction under Section 67 of the Code of Criminal Procedure. But we think the conviction may be altered to one of retaining stolen property known to have been obtained by dacoity (Indian Penal Code, Section 412), and the sentences upheld. The retaining is included in the more comprehensive charge viewed as an abstract accusation of an act attended with a certain intent or consciousness, and the conception of dacoity being independent of the place where it was committed suffices to cover what is embraced within it, though the latter was an act done in British territory. The retaining was in British terri...
Tag this Judgment!Pratab Daji Vs. the Bombay, Baroda and Central India Railway Company
Court : Mumbai
Reported in : (1877)ILR1Bom52
Charles Sargent, J.1. This matter comes before us on a case stated for the opinion of the High Court under Section 35 of Act IX of 1850, and arising out of an action brought by the plaintiff in the Small Causes Court, to recover from the defendants the sum of Rs. 200 as damages for the forcible and illegal removal of the plaintiff from one of the defendants' carriages at Dhandu station, and for illegal detention at the aforesaid station, and for illegal refusal of the defendants to allow the plaintiff to proceed in the train to Bombay. At the hearing of the cause, the Fourth Judge of the Court was of opinion that the defendants had committed the several illegal acts with which they were charged, and passed judgment for the plaintiff' for the full amount of his claim and costs. A rule nisi was obtained by the defendants for a new trial, and came on for argument before the First and Fourth Judges of the Court, who were divided in their opinion,--the First Judge being of opinion that ther...
Tag this Judgment!Krishnaji Ravji Godbole Vs. Ramchandra Sadashiv
Court : Mumbai
Reported in : (1877)ILR1Bom70
West, J.1. The Assistant Judge has held the mortgagee in possession in this case not responsible for the land revenue of the fields held by him under the mortgage. The plaintiff, as Kabulayatdar Khot, is recognized by the Assistant Judge as entitled to demand from Dharekaris the amount of assessment on their dhara; but Lakshmibai, the mortgagor, being owner of the dhara in question, and, therefore, occupant according to the Bombay Survey Act I of 1865, the Assistant Judge has held that she, and she alone, is responsible for the assessment. That she is responsible for it, is true; but it does not follow that she is solely responsible, and Regulation XVII of 1827, Section 5, enables the Government, and, therefore, the holder of the rights of Government, on failure of the superior holder to pay the revenue, to realize it from the inferior holder, a position which, in the sense of the Regulation, is held in this case by the mortgagee.2. It is obvious that, if the occupant only could be mad...
Tag this Judgment!Jibhai Mahipati and anr. Vs. Parbhu Bapu and anr.
Court : Mumbai
Reported in : (1877)ILR1Bom59
West, J.1. The application in this case was presented for execution of a decree, the last prior application for execution of which had been made in February 1868. Upon that earlier order, partial execution had been obtained and proceedings sufficient apparently to bar limitation under the Act of 1859, had been going on till 30th September 1871. The application made to the Court on that day was not one which, according to the case of Gouree Sunkur Tribedee v. Arman Ali Chowdhry 21 Cal. W.R. 309 Civ. Rul), could bar limitation under Act IX of 1871. It was, indeed, merely a request or suggestion that the Collector should be directed to carry out a direction sent to him in 1868 in a particular way; but if it had been an application of a kind which in itself could serve as a bar to limitation, it was then already too late on the day when it was made, which was more than three years after February 1868, and, being thus inadmissible, could not mark a point of time from which a fresh period of...
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